Tuesday, June 30, 2020

A Joyless Victory

The four-year fight over Harvard’s “USGSO” policy is over. (”Unrecognized Single Gender Social Organizations.”) But many questions remain.

This is the policy President Faust and Dean Khurana announced, without any prior public discussion, during spring reading period in 2016. It denied certain honors and privileges to members of single-gender clubs, clubs that had no Harvard space or official recognition. It was clear from the beginning that the policy was aimed at the old male Final Clubs, as the policy was represented early on as a response to the problem of campus sexual assault (the vast majority of which are attacks by men on women) and to pernicious social class hierarchy. Data were presented in support of the first rationale, which withered under scrutiny and was never mentioned again. No attempt was ever made to back up the charge of social or ethnic exclusivity with hard data, though it always seemed clear that even the ritziest of the Final Clubs was far more ethnically diverse than (say) the Black Men’s Forum or the Asian American Sisters in Service, both fully legitimate Harvard-sponsored organizations.

The sanctions had little effect on the Final Clubs. A year or so ago I had lunch at a restaurant in Harvard Square with an undergraduate, and as we were chatting a series of men with athletic physique and impeccable attire came by and exchanged fist bumps and grunted greetings with my companion. “Recruiting?” I naively asked. “No,” he replied. “Punch season.”

But the sanctions all but wiped out the women’s clubs, which did not have the real estate, the alumni backing, or the stabilizing traditions of the men’s clubs. Parties including sororities sued Harvard in Massachusetts and Federal courts, and successfully beat back Harvard’s motion to dismiss in both venues. It was Judge Gorton’s opinion in the federal case that President Bacow cited in dropping the policy yesterday, noting that its reasoning was consistent with the majority opinion in the recent Supreme Court decision about LGBTQ employee rights. (Two weeks ago I pointed out that assonance and why I thought it spelled trouble for Harvard’s USGSO policy.)

So what more is there to say?

First, President Bacow’s retreat on the policy is minimalist, as is Dean Khurana’s supporting statement. Harvard does not acknowledge that the policy was wrong; only that it was likely to be interpreted as technically illegal under a peculiar interpretation of Title VII by a couple of judges. So from a purely personal standpoint, I find the outcome unsatisfying, because I never would have guessed that the policy was unlawful—only unwise and, in restraining students’ freedom of association off-campus, out of step with the spirit of American civil rights. (That is why the American Constitution Society debate held on this topic in November 2016 referred to the policy violating “First Amendment values,” not the First Amendment itself.) President Bacow writes of Judge Gorton’s opinion in denying Harvard’s motion to dismiss,

[T]he court accepted the plaintiffs’ legal theory that the policy, although adopted to counteract discrimination based on sex, is itself an instance of discrimination based on sex.

Now that way of putting it suggests that there is something absurd in the judge’s reasoning, that Harvard’s good intentions should be to its credit in this battle, that you have to tie your brain in a pretzel to make sense of the logical trap into which Harvard fell. That “we’re still right about this” posture echoes through Dean Khurana’s accompanying statement. I would have been happier to think that Harvard leadership had realized that the policy was not just technically wrong but fundamentally misguided, particularly for an educational institution. We should not be teaching students that the way to respond to social problems is to limit the ways in which citizens can peaceably assemble. 

Second, substitute “race” for “sex” in the sentence quoted above, and you have pretty much the basis for the SFFA lawsuit against Harvard, which is now in the hands of a US Court of Appeals. Harvard Magazine does a good job teasing out the uncomfortable implications for Harvard if that case makes it to the Supreme Court and that Court continues this line of reasoning.

A third consequence of the narrowness of the institutional concession is that it leaves open the possibility of a new policy taking squarer aim at the Final Clubs, or some larger set of off-campus organizations. Harvard could, for example, adopt a policy prohibiting (or penalizing) membership in an organization that costs money to join, unless it waives those fees for students who can’t afford to pay them. No Title VII protections would come into play, I suppose. 

Fourth, none of this settles the question of those lawsuits. Harvard has acknowledged it would lose them (or at least the federal case). What happens now? Does Harvard have to pay the plaintiffs? Does it have to do something to restore the women’s clubs it crushed? 

Finally, as the Globe reported this morning, the plaintiffs had yesterday filed a motion for an injunction against Harvard, apparently only hours before the Corporation vote and the president’s announcement. That motion is based on discovery of Harvard internal deliberations, which are unsurprising but damning. To quote (omitting citations to exhibits).

Evidence adduced in discovery reveals, however, that the Sanctions Policy (or something very much like it) was in the works long before May 2016; that the process for adopting the Policy was infused with sex stereotypes and anti-male bias; and that the Implementation and USGSO Committees were constituted to do little more than add a veneer of process to decisions already made by Harvard’s administrators long before. 

In an internal memo and presentation prepared in late 2015 and early 2016, the architect of the Sanctions Policy—Dean Rakesh Khurana—declared that he wanted to punish men who join men’s groups because men’s groups “jeopardize safety.” These documents show that Khurana already planned to target men’s organizations long before Harvard formed any committee or engaged in any kind of deliberative process, and that he was motivated to do so by a view that men’s groups are categorically unsafe places. The documents also show that the supposed “gender equity” rationale for the Policy was nothing but messaging. In a list of “pros” for targeting all single-sex organizations as a way of eliminating men’s groups, Khurana wrote that this ostensibly even-handed approach would improve “public relations: ‘University committed to gender equity.’” 

In an email and attachment sent to Dean Khurana on March 2, 2016, Harvard’s then- President Drew Faust expressed similar anti-male bias in supporting adoption of the Sanctions Policy. Faust declared that “the continuing hegemony of exclusive all male Final Clubs over undergraduate social life is deeply disturbing.” In her view, men’s groups—which she characterized as “overwhelmingly white and largely financially well-off men”—“yield disproportionate numbers of sexual assaults” as “the product of the hierarchical, gendered assumptions that form the very basis for [their] existence.” Id. “These organizations and the attitudes their current structure -- all male, unsupervised access to alcohol, exclusivity of male membership --inevitably encourages pose real dangers,” including to “fundamental physical safety.”

Numerous other previously unavailable documents show that sex stereotypes and anti- male bias shaped the Policy and drove its adoption. In internal Harvard documents, men’s organizations are consistently described as places of misogyny, racism, homophobia, and sexual violence; women are consistently described as unequal, victimized, and disempowered; and women’s organizations are disregarded as an unfortunate consequence of men’s organizations, existing solely as a mechanism to cope with exclusion from men’s spaces. 

Today is my last day as Gordon McKay Professor of Computer Science; starting tomorrow I will be “Gordon McKay Research Professor,” a fancy way of saying that I will be retired but active. It is a happy day for me, but not because it’s a day I am particularly proud to be a Harvard alumnus or faculty member. I am glad that the USGSO policy is no more and grateful to the many alumni and faculty who supported the effort to get rid of it. They are a wonderfully diverse group, starting with the three co-authors of the op-ed No Values Tests back in the fall of 2016, Margo Seltzer, Eric Nelson, and Richard Thomas. We all took some heat from our faculty colleagues and even from our institutional leaders. No matter. 

But what a colossal waste of time, money, and good will this policy has been for Harvard. Good riddance. I wish I could be more confident the University had learned something from the experience.

Tuesday, June 16, 2020

Because of sex

There was a striking coincidence between the legal reasoning in the Supreme Court's opinion outlawing employment discrimination against gay and transgendered people, and the reasoning of Judge Gorton when he denied Harvard's motion to dismiss the federal suit against the University filed by certain single-gender organizations. I wrote up that decision in a post called But For, because the key point in the opinion was that Harvard was discriminating on the basis of sex because it would not have been against Harvard policy for a woman to join an all-male Final Club or fraternity. The fact that the club would not have welcomed her was irrelevant.

In the opinion written by Justice Gorsuch in the momentous Supreme Court decision earlier this week, an almost identical fact pattern was at stake."Clayton County, Georgia, fired Gerald Bostock for conduct `unbecoming' a county employee shortly after he began participating in a gay recreational softball league." Had he been a woman joining that league, she would not have been fired. But for his sex, he could have kept his job and joined the league. So he was fired because of his sex. 

That is sex discrimination and unlawful under federal law, we now know. Of course Harvard's clubs do not present an employment situation. Still, if the case goes to trial it seems ever clearer that Harvard is going to have a hard time explaining why its policy against students joining single gender organizations is not sex discrimination. I have no idea what the state of play in that case is, and actually hadn't thought about the Harvard clubs for quite awhile; but Gorsuch and Gorton certainly sound a great deal alike!

Saturday, May 2, 2020

A question unanswered in the Epstein report

It was inevitable that the Harvard report (released, in classic style, on a Friday afternoon) would raise as many questions as it answered. It is lawyerly (not surprising, it was written by lawyers) and focused on Harvard rules and policies. I find it very damaging to the reputation of Harvard's faculty, and rather reassuring about the integrity of Harvard's leadership.  At one crucial juncture in 2013 (page 11), a development office staffer writes a bloodless memo to Harvard leadership describing the interest shown by the chair of the Math department and the dean for Science in raising more money from Epstein, even though he was by now a sex criminal. The dean of the Faculty of Arts and Sciences and the President said no, and they deserve credit for their good judgment. The system worked, to that extent. The question would be how those advocating for accepting the money came to the conclusion that "the good his support can do for Professor Nowak’s research outweighs the reputational risk of accepting further funds from him. In addition, they emphasize both that Epstein has served his time for his crime, and that his wealth has been obtained legally, having nothing to do with the crime for which he was convicted." I have some opinions on all that, as others do as well. But I would like to point to a different question.

On page 18, footnote 13 reads as follows:
A number of the Harvard faculty members we interviewed also acknowledged that they visited Epstein at his homes in New York, Florida, New Mexico or the Virgin Islands, visited him in jail or on work release, or traveled on one of his planes. Faculty members told us that they undertook these off-campus activities primarily in their personal capacities rather than as representatives of Harvard. These actions did not implicate Harvard rules or policies
Now first of all, what "number"? That is a lot of travel if the number of involved faculty is small, and a lot of travel if the number of involved faculty is large. Who are these people who kept buzzing around Epstein? We probably know some of the names, but perhaps not all.

The big question is "why?" Why did these distinguished Harvard faculty continue to consort with Epstein? We know that some of them wanted more money for their Harvard programs, but there seems to be something more going on. Some of them apparently thought Epstein was brilliant, or were at least willing to tell the Harvard administration they thought so. (Dan Dennett and Steve Pinker, to their credit, seem to have figured out early on that Epstein was intellectually a phony.)

So what I really would like to know in this context is how to parse the phrase "primarily in their personal capacities rather than as representatives of Harvard." Plainly, under even the most generous interpretation, Harvard's reputation stood to be damaged by an aggregation of academic suitors being solicitous of a sex offender. We all have private lives that are not Harvard's business, but if three Harvard professors go out to dinner with a rich criminal, Harvard is automatically implicated.

I am most interested in a specific question raised by the quoted phrase. 

Joi Ito, sometime head of the Media Lab at MIT, had to resign when it was disclosed that he, like Nowak, had allowed Epstein to get uncomfortably close to the institution he headed. In some ways, the Harvard situation seems worse to me than the MIT situation, because Ito was responsible for raising enormous amounts of money just to keep the Media Lab running. It is a crazy financial model that creates terrible incentives, which is not to excuse Ito's conduct. But the Harvard Math department was in no danger of going out of business if the chair of the department failed to raise a single dollar. What happened at Harvard looks to me more like ethically obtuse expansionist greed than what happened at the Media Lab. 

But Ito committed another affont to commonly accepted values. At the same time as he was raising money from Epstein for the Media Lab, he was raising money from Epstein for his own venture fund. There may have been no rule against that--do we really need such rules?--but anyone with the feeblest ethical sense would recognize it as a conflict of interest that, at a minimum, would require disclosure, and almost certainly would have been stopped had MIT known what was going on, as it did not. As it was, it seemed that Ito was using his ability to get MIT to accept Epstein's gift to the Media Lab, thereby repairing Epstein's damaged reputation, as leverage on Epstein to get him to support Ito's personal investment fund.

So my question about the "number of Harvard faculty members" mentioned in footnote 13: Was any of them personally profiting from their association with Epstein? If their business with Epstein was conducted "primarily in their personal capacities," did those personal capacities in any way involve building their personal wealth?

Just asking.

Added May 3.

1) On my bottom line question, the report is silent as far as I can see, but it does mention in footnote 6 (page 10) an Epstein gift to a nonprofit foundation headed by a Harvard professor (one whose husband, also a Harvard professor, appears in a photograph with Epstein).

2) A colleague has suggested that the situation of those trying to raise a second round of Epstein money for the PED parallels Ito's situation with the Media Lab more closely than I suggest above: in both cases they would go under and there would be layoffs if more money could not be raised. It is true (page 16 of the report) that Epstein's $6.5 million dollar gift had been spent down by 2013, and while he was not the only donor, PED apparently did need to keep raising money to stay afloat. It's much smaller than the Media Lab -- 8 graduate students, 5 postdocs, 2 research associates, a couple of administrative staff, and a single professor, according to the program's web site right now. A fair parsing of this would get us into a different ball of wax: how we professors learn to use terms like "essential" and "urgent" to describe favored programs when we want to start or to keep them going or to use them to recruit desirable faculty, even though they are a drain on the institution's unrestricted money and, most of the time, Harvard (or MIT) would function just fine without them. A story for another day.

Wednesday, November 20, 2019

Memorial Hall fire, September 6, 1956

Amazing footage of the fire that destroyed the tower of Memorial Hall, uncovered by David Malan and uploaded to Youtube. It seems to confirm that the water pressure was insufficient for the fire hoses to reach the tower.

Tuesday, November 5, 2019

Remarks to the Faculty of Arts and Sciences on fossil fuel divestment

Today the FAS today discussed the advisability of Harvard divesting from fossil fuel investments. This discussion had started at the previous meeting; see Harvard Magazine for a complete transcript of the earlier meeting and also for a transcript of the November 5 meeting. I spoke at today's meeting, as follows:


I am Harry Lewis, Gordon McKay professor of computer science, and I should like to speak against the push for divestment from fossil fuels. 

Let me begin by agreeing with the colleagues who have docketed this discussion that climate change is the great existential threat of our times. The question is what Harvard should do about it. Of course, Harvard can do more than one thing, but as we are an institution devoted to teaching and research, those are the weapons we are best positioned to marshal in the fight. And teaching in particular is the thing that this Faculty, acting as a body, can decide to do. Our undergraduates disproportionately go on to influence the future of the world in industry, the professions, and public service. We could shape our curriculum so that Harvard undergraduates will leave here understanding the nature of the threat and their agency to do something about it. I know that many individual faculty members have, to their credit, stressed environmental issues in their own teaching. But we are now being asked to act as a body to pressure the Corporation for divestment, when we have taken no comparable action as a body to better educate our students. 

For this Faculty as a body to alter our education requires no petition to the Corporation or permission from any dean or president. Someone could put a curricular motion on the table and we could vote on it. If we wanted to make it happen, it would happen, whether the Corporation liked it or not. We could make a requirement, or we could fashion a more creative educational strategy. But mainly I wish that my colleagues had asked us to make a commitment as a body to do something that is actually within our competence and power to do, before asking us to tell the Corporation how it should run the endowment. Rather than piling up educational requirements, we might even decide that learning about climate change is more important than the least important of the many other things we already expect of our students.

As for divestment now. I took some pains a moment ago to name the donor of my chair, to make the point that Harvard can do good works with tainted money. If you do not know the tale of Gordon McKay, I invite you to read the vita I wrote about him for Harvard Magazine a few years ago. He would be a pariah today, but I don’t think that has diminished the good that has come from his endowment. 

Now I have no opinion about whether Harvard should or should not be invested in anything. The job of the endowment managers is to preserve and increase Harvard’s endowment, so that we faculty can do our good works and our students can reap the benefit. Our job is advancing society through teaching and learning.

Universities are the kidneys of society. The main thing you want from kidneys is to produce pure output, whether or not the inflow is dirty. It is odd that we regularly try to seize the moral high ground by discussing divestment from something or other that is considered impure, but we rarely talk about whether our own work advances society or not. It is no breach of academic freedom to seek answers to that question. All it requires is a willingness to be as critical of ourselves as we are of the Corporation and its investments.

At the last meeting Professor Hall correctly described fossil fuel divestment as a political statement, one that would not exert financial leverage on the fossil fuel industry. Indeed, selling supply-side stocks to someone else and leaving all the demand-side stocks in our portfolio---airlines, trucking companies, Amazon, the meat industry—seems to me pointlessly self-gratifying. Really, divestment votes are a waste of time. The country’s two largest pension funds, which are many times the size of the Harvard endowment, divested from gun stocks after the Sandy Hook massacre, but there’s no evidence that did anything to solve our horrible gun problem. But they resisted pressure to divest from stores selling guns, and because they had a seat at the table as shareholders, they helped get some of those companies to change their practices.

One of the things about political statements is that they tend to be welcomed by people who don’t need convincing and to do little to persuade skeptics. They are divisive, when academia more than ever needs friends and allies today. Universities make too many political statements already, and such empty declarations increase skepticism about whether we are really in the business of truth as we claim to be or are now just one more politicized American institution.

What we as a Faculty should instead do to impact the climate, it seems to me, is to use as much money as Harvard can make available to us to fight the needed scientific, technical, economic, civic, and social fights. If some of the money we use to do that comes from the fossil fuel industries themselves, the joke will be on them.  We should accept the profits and use them to help save the planet in the ways we are professionally competent—and powerfully positioned—to do.

Thursday, October 31, 2019

The Wheaties box

There is plenty of skepticism about the recent NCAA decision to allow athletes to profit from their likenesses, but as I told the Crimson, it's a step in the right direction. The objections are based on predictions of the ruin  to be visited on intercollegiate athletics by any breach of the strictest interpretation of the amateur standard. Somehow the amateurism purists never worry about the student musician who performs in the orchestra and is paid for birthday-party gigs on weekends, nor the computer programming team members who are treated to a fancy meal while they are halfway around the world representing the University in championship competitions. Those activities, of course, have nothing comparable to the labor-market-controlling NCAA setting limits on students' off-campus lives.

To be sure, there are real opportunities for abuse and unfairness as the amateurism regulations are relaxed (not that excesses have been impossible under current rules). It all depends on the way the rules are written and interpreted. I expect that what will happen is that the NCAA, having controlled the market with an iron hand up to now by absurdly inflexible regulation, will be forced by outside authorities to go too far. Had it shown a bit more common sense earlier on, it would not have created the social and governmental pressure that will now decide what's best for universities to do. (Not the first time such a thing has happened in higher ed. Not even the first time in this issue of the Crimson.)

Be that as it may, this image explains my sympathy for the players on this change.

It's a photo of the 1998 US women's ice hockey team, which won gold at the Olympics. Except that a few players are missing, including Harvard star AJ Mleczko. These players still had a year or two of intercollegiate competition ahead of them, but would have been disqualified if they turned pro -- where the standard for turning pro included allowing their images to be used in a commercial promotion like this one, even if they were not being paid. This is not just crazy; it's mean. I hope the rule change will mean that no such thing will happen to students in the future.

The same journalist has a second Crimson story online, about the social isolation of athletes. Meal times are a major irritant on this, as they have been as long as I can remember. I have a win-win suggestion to attack this problem, one I have been advocating since the plan was announced to move Engineering to Allston: Serve dinner at the new Science and Engineering Complex, just steps from Soldiers Field. Athletes tend to rise and go to bed early, engineers tend to be night owls, so there is not much overlap of their circadian rhythms, but they have the dinner hour in common. It would be a great vehicle for social mixing, and would attract arts students too, not to mention friends curious about life on the other side of the river. How about it?

Thursday, October 3, 2019

Kronman's "Assault on American Excellence"

Anthony Kronman at Yale wrote a book a few years ago called Education's End (a pun), which had some resonance with Excellence Without a Soul. He has another book out about higher education, The Assault on American Excellence. It's pretty much guaranteed to make you angry in places, either because you think he misrepresents something you think important, or because you think he exposes some stupidity you can't believe is actually dignified at places like Yale. For me it does some of both, but I tried to swallow all that and write a dispassionate review when asked to. I entitled the review "Overlapping Magisteria" in homage to Steve Gould, and used it in part as an opportunity riff on a problem that doesn't get discussed much.